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Although major cases involving gay marriage have grabbed most of the headlines in recent weeks, the Supreme Court of the United States handed down yet another important family law case at the end of this year’s term. In Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013), the Court held in a 5-4 decision that Sections 1912(d) and 1912(f) of the Indian Child Welfare Act do not apply in situations where a parent has never had custody of his child. This reversed a South Carolina Supreme Court decision and remanded an already protracted adoption and custody dispute for still more proceedings in state court.

The facts of the case are mostly undisputed. Baby Girl’s parents, who lived about four hours away from each other, became engaged in December 2008. About a month later, Birth Mother (who is “predominantly Hispanic”) informed Birth Father (a member of the Cherokee Nation) that she was pregnant. The relationship went downhill thereafter, apparently at least partly because the couple differed over what to do next: Birth Father wanted to move up the wedding and refused to provide financial support until after the marriage while Birth Mother did not agree to this and broke off the engagement in May,2009. In June of that year, Birth Mother sent a text message to Birth Father, asking if he preferred relinquishing his parental rights or paying child support, and he texted back that he would rather give up his rights. It is undisputed that Birth Father provided no financial or other support to the mother or baby during the pregnancy or during the four months after Baby Girl was born.

Birth Mother decided to give the baby up for adoption and selected a non-Indian adoptive couple living in South Carolina who supported Birth Mother emotionally and financially during her pregnancy and delivery. She was aware of Birth Father’s tribal affiliation, but when her lawyer contacted the Cherokee nation, Birth Father’s name was misspelled and his birthdate was incorrect in the contact letter. As a result, the tribe could not verify his membership and did not intervene in the adoption. Birth Mother signed papers relinquishing her parental rights immediately after the birth, while Birth Father signed papers saying he was not contesting the adoption four months after the birth. He later claimed that he thought he was relinquishing his parental rights to Birth Mother, and did not understand that there was an Adoptive Couple in the picture. One day later, he attempted to rescind his consent and stay the adoption proceedings. The case finally came to trial when Baby Girl was 27 months old, at which time the South Carolina court determined that the Indian Child Welfare Act precluded the adoption and required that custody of the child be granted to Birth Father. Baby Girl, now four years old, has resided with Birth Father ever since. This decision was upheld on appeal in the South Carolina courts.

It is undisputed that Birth Father’s consent would not have been required under South Carolina Law, so his claim had to succeed (if at all) under the Indian Child Welfare Act. The ICWA was adopted in 1978 to address the then widespread practice of removing Indian children from their homes and placing them for foster care or adoption in non-Indian homes. These removal practices, ostensibly to protect the children from poverty, alleged abuse or neglect, were in fact motivated by deep prejudice that refused to recognize the importance of the extended tribal family, and did not focus on non-material advantages of growing up in Native American culture. Then and now, these removals were seen as harmful to the children themselves (who would be denied contact with their families and tribal traditions) and for the Indian nations generally (which were being decimated by the removal of their fledgling generations). It should be noted that individual tribes set their own standards for eligibility for tribal enrollment triggering application of the ICWA, and in many cases the percentage of Indian blood required may be relatively low.

In many cases, tribal courts will have jurisdiction over custody or TPR proceedings, but even if a state court assumes jurisdiction, the ICWA imposes strict requirements governing the custody of any Indian child. First, under Section 1912 (d), anyone seeking a TPR must show that remedial and rehabilitative efforts to prevent the breakup of the Indian family have been unsuccessful, Second, §1912(f) states that a TPR cannot be ordered without evidence beyond a reasonable doubt that continued custody with the parent or other Indian custodian is likely to result in serious physical or emotional damage to the child. In addition,§ 1915(a) requires that a preference for adoptive placement must be given to a member of the child’s extended family, other members of her tribe, and other Indian families.

The majority opinion in the present case, written by Justice Alito (and joined by Justices Roberts, Kennedy, Thomas and Breyer), held that the ICWA did not require a finding of harm in continuing the child’s custody with her Indian parent because Birth Father never had custody of Baby Girl. The opinion goes on to say that Baby Girl’s placement with Adoptive Couple did not constitute a breakup of an Indian family because there was no existing Indian family that could be broken up since Birth Father had abandoned the child before her birth. Moreover, the Court concluded that the placement preferences for Indian family members or tribal members did not apply because no one other than Adoptive Couple had come forward to adopt Baby Girl. A strongly-worded dissent by Justice Sotomayor (and joined by Justices Ginsburg and Kagan in whole and by Justice Scalia in part) argues that basing the opinion wholly on the phrase “continued custody” is inconsistent with Congress’ purpose of using the ICWA to slow the trend of placing Indian children in non-Indian homes for foster care or adoption.

There is much to be said about this case, and much will be written about it in the future by me and many others. For now, though, a couple of things stand out.

First, by denying ICWA protection to a father who has never had custody of his child, the Court seems to be giving precedence to the statutory purpose of preserving the relationship between an Indian child and his family, while virtually ignoring the purpose of preserving the relationship between the Indian child and his tribe. Yet the Congressional purposes in enacting the ICWA were threefold: to preserve the best interests of Indian children, to preserve Indian families, and to ensure the continuation of Indian nations. As Justice Sotomayor wrote in the dissent: “A tribe’s interest in its next generation of citizens is adversely affected by the placement of Indian children in homes with no connection to the tribe, whether or not those children were initially in the custody of an Indian parent.” By emphasizing Birth Father’s initial shirking of parental responsibility, the Court seems to suggest that the tribal interest in the next generation of Indian children is somehow lessened when a parent has not retained custody – but in fact the ICWA has traditionally been interpreted to mean that the tribe’s interest is increased where an Indian parent is falling short, because it is then that the tribe must find another family member or another Indian family to protect the child and keep him connected with his heritage. Does the Court mean to imply that the tribal interests only kick in if the Indian birth parent has met some minimum parenting standard? If so, what might that minimum standard be?

Secondly, the majority opinion makes several references to the fact that Birth Father is attempting to assert rights under the ICWA even though Baby Girl has only a small amount of Indian blood. The Court points out that she is 3/256 Cherokee – meaning that about 1.2% of her bloodline is Indian. There is the suggestion – but admittedly not the statement – that she is not “Indian enough” to justify letting this be the determinative factor in her placement. The Court expresses concern that “vulnerable children [could be] at a great disadvantage solely because an ancestor – even a remote one- was an Indian.”(p. 16 of opinion) The majority goes on to say that this might allow an Indian father who has abandoned his child and its mother to “override the mother’s decision and the child’s best interests” at the eleventh hour, and that such an interpretation might deter prospective adoptive parents from adopting any child to whom the ICWA might apply.(p. 16) This language is troubling, because it seems to bring into question much of the basis for jurisdiction under the ICWA – namely, a standard for enrollment based on whatever percentage of Indian blood is designated by a particular Indian tribe. It could be argued that, under this language, a non-Indian parent’s determination of a child’s best interests could override the Indian parent’s or Indian tribe’s authority to determine those interests if a child’s Indian ancestors are too few or too distant. If so, how big or small a percentage of Indian blood is required for tribes to retain the authority to determine a child’s best interests, and if the power Congress gave to the tribes to set that percentage is trumped, who gets to decide and on what basis?

In the end, Adoptive Couple v. Baby Girl raises more questions than it answers. Ironically, it does not even settle the custody question for Baby Girl – because the South Carolina court must now decide her best interests after having spent her first two years with Adoptive Couple and the past two years with Birth Father. One must hope that King Solomon is gazing down kindly from heaven to provide guidance in the case.

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2 Responses to “Adoption and the Indian Child Welfare Act”

My interpretation of this case is that the Court held there is nothing wrong with ICWA. It simply did not apply in this case. So while the outcome was rather odd, ICWA is still the law. When you have a messy fact pattern, as was the case here, you are going to get a decision that people can disagree over. Nevertheless, ICWA is still the law as written and interpreted, and that is a good thing.

The Cherokee Nation is on the forefront of blood degree and assimilation. Apparently, the degree of blood is no longer a deciding factor for Cherokee heritage. Perhaps they are right – in the future. Blood degrees are about the termination of Tribes. The Justices have shown this to be the case, and they have used this little girl’s blood degree to determine the ICWA does not apply. The Supreme Court has decided who the Indians are, and I guess they are the new Chiefs. Tribes no longer control their rolls.